TL;DR — Key Takeaways
- Most conduct that feels like bad faith is aggressive advocacy, and California courts treat the two very differently. The line is not how unpleasant the other side is; it is whether a filing or tactic lacks any legal or factual basis.
- Code of Civil Procedure section 128.7 applies an objective standard to signed filings. Section 128.5 reaches bad-faith actions or tactics more broadly, including conduct that is not a signed paper.
- Both carry a 21-day safe harbor. You have to serve the sanctions motion and wait before filing it, which gives the other side a chance to withdraw the offending paper. That is why sanctions are sought more often than they are granted.
- Discovery abuse has its own machinery, and one sanction is mandatory: a $1,000 payment for specified failures in responding to document demands, in effect since January 1, 2024.
- A refusal to negotiate is not sanctionable. A formal offer to compromise is usually a better response than a motion.
- The strongest answer to genuine bad faith is a clean record and motions that narrow the case, not an escalation that matches it.
When the other side stonewalls discovery, files motions that go nowhere, or refuses to discuss settlement, the instinct is to ask the court to punish them. California does provide that machinery. It is narrower than most clients expect, procedurally demanding, and often a worse use of money than the alternatives. Knowing which situation you are in is the point of this post.
What actually counts as bad faith
The distinction California draws is between advocacy you dislike and conduct without a basis.
Code of Civil Procedure section 128.7 is the main tool for filings. By signing a pleading, motion, or other paper, an attorney or unrepresented party certifies that it is not being presented for an improper purpose such as harassment or unnecessary delay, that the legal contentions are warranted by existing law or a nonfrivolous argument to change it, and that the factual allegations have evidentiary support or are likely to after investigation.
The standard is objective. The question is not whether the filer subjectively intended mischief, but whether a reasonable attorney would have thought the filing had merit after reasonable inquiry.
Code of Civil Procedure section 128.5 reaches further. It addresses bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay, and it is not confined to signed papers, so it can reach conduct during a deposition or a pattern of behavior across a case. A section 128.5 motion has to be made separately from other motions and describe the offending conduct in detail.
For years the two sections differed on whether a safe harbor applied to section 128.5, with published decisions going both ways. The Legislature settled it: section 128.5(f) now directs that sanctions be imposed consistently with the standards, conditions, and procedures in section 128.7, which imports the safe harbor.
What is not bad faith. Refusing to settle. Making a demand you consider unreasonable. Taking a legal position you think is wrong but that has some support. Being slow, unpleasant, or unresponsive within the rules. Losing a motion. None of these is sanctionable on its own, and a motion built on them tends to damage your credibility with the judge at the moment you most need it.
The safe harbor, and why it changes the calculation
This is the part that surprises people, and it is the reason to understand the mechanics before you spend money on a motion.
Under section 128.7, a party seeking sanctions must serve the motion on the offending party and then wait 21 days before filing it with the court. During that window the other side can withdraw or correct the challenged paper. If they do, the motion cannot proceed.
Read that as a feature rather than a loophole. The statute is designed to get the improper filing off the docket, not to generate a penalty. In practice a well-drafted safe-harbor letter with the motion attached often accomplishes what you actually wanted, which is usually the withdrawal of a meritless claim or defense, at a fraction of the cost of a contested hearing.
Two practical consequences. First, sanctions motions take time, so they do not help with a deadline that is about to bite. Second, if the other side cures, you have spent the preparation cost and recovered nothing, which is a reason to serve the motion early rather than as an end-of-case grievance.
If you are weighing whether a filing crosses the line, that assessment is worth getting right before you serve anything. Call Bay Legal at (650) 668-8000 in Northern California or ((213) 668-8000 in Southern California.
Discovery abuse is handled separately, and one sanction is mandatory
Discovery has its own framework and it is used far more often than sections 128.5 and 128.7.
Code of Civil Procedure section 2023.010 lists what constitutes a misuse of the discovery process: persisting in an unwarranted discovery method, using a method to cause unwarranted burden or expense, failing to respond or to submit to an authorized method, making evasive responses, making unmeritorious objections, and disobeying a discovery order, among others. Section 2023.030 sets out the sanctions a court may impose, which escalate from monetary sanctions through issue, evidence, and terminating sanctions.
Section 2023.050 added a mandatory floor. For specified failures in connection with a demand for inspection or production of documents, the court is required to impose a $1,000 sanction payable to the requesting party, in addition to any other sanction. That figure took effect January 1, 2024, raising the prior amount, and the section also permits discretionary reporting to the State Bar. Confirm the current figure and the precise triggering conduct with counsel, since the provision is specific about what it covers.
This is the meaningful difference between the two regimes. Discovery sanctions attach to conduct courts see constantly and are granted with some regularity. Section 128.7 sanctions attach to a certification about the merits of a filing and are granted sparingly.
Our post on what discovery actually costs covers how a discovery fight consumes a budget even when you win it.
How strategy changes when the other side will not engage
A party who does not negotiate is not misbehaving, but they do change what works.
Build the record rather than the grievance. Every unanswered meet-and-confer letter, every evasive response, every missed deadline documented in writing becomes either the foundation of a motion or leverage in a later settlement conversation. Judges respond to a paper trail and not to characterization.
Use a formal offer to compromise. A statutory offer under Code of Civil Procedure section 998 puts a number in front of the other side with a cost consequence attached if they reject it and fail to do better. Against a party who will not negotiate informally, it converts an unproductive conversation into a risk calculation they have to run. How section 998 offers work covers the mechanics and the traps.
Narrow the case. A demurrer, a motion to strike, or a targeted summary adjudication removes claims rather than punishing the person asserting them. Fewer claims means less discovery, lower cost, and a clearer picture of what the case is actually about.
Move the decision to someone with authority. Stonewalling is often a function of who is handling the file rather than a strategy. A mediation, a mandatory settlement conference, or a letter to a party rather than to counsel sometimes moves the matter to a person who can say yes. Mediation, arbitration, or trial covers the forum options.
Check your own exposure. If you are being told your position is frivolous, take it seriously enough to test it. The safe harbor exists so that a filing can be withdrawn before sanctions attach, and using it is not a concession of the case.
Does bad-faith conduct affect who pays the fees?
Less than clients hope, and through a narrow channel.
California follows the American Rule: each side bears its own attorney’s fees unless a contract or a statute shifts them. Bad-faith conduct does not create a fee-shifting right where none existed. What it can do is support a sanctions award that includes some of the fees the conduct caused, which is a different and usually smaller thing.
Where a contract or statute already provides for fees, the other side’s conduct can affect the amount, because a fee award is measured by reasonable fees and a court can consider how much of the work the opposing party made necessary. Who pays attorney’s fees in California covers the framework.
When escalation is the right call, and when it is not
Escalate when the conduct is documented, ongoing after you have addressed it in writing, and causing real cost or prejudice. A pattern of discovery abuse that is running up your bill and hiding evidence is worth a motion to compel with sanctions. A claim with no legal basis that is driving the case’s scope is worth a safe-harbor letter.
Do not escalate because the other side is unpleasant, because a demand is high, because they took a position you think is wrong, or because you want the judge to know what you are dealing with. Judges see that motion often, and the party who brings it without the record to support it loses ground.
And there is a version of this that is worth saying plainly: sometimes what looks like bad faith is a party who genuinely sees the case differently and has been advised they will win. Testing that possibility honestly, before you spend money on a sanctions motion, is part of the analysis. Is my lawsuit worth it works through the underlying cost-benefit question.
Bay Legal handles both sides of these disputes, including defending clients accused of improper litigation conduct. Reach us at (650) 668-8000, (213) 668-8000, or through baylegal.com/contact-us.
Frequently Asked Questions
What counts as bad-faith conduct in California civil litigation? Broadly, filings made for an improper purpose or without legal or factual basis, and tactics that are frivolous or intended solely to cause delay. Code of Civil Procedure section 128.7 applies an objective standard to signed papers; section 128.5 reaches a wider range of actions and tactics. Aggressive advocacy, a refusal to settle, or a legal position you disagree with is generally not bad faith.
What sanctions are available, and how often are they granted? Under sections 128.5 and 128.7 a court can order monetary sanctions and other relief, but both require a 21-day safe harbor that lets the other side withdraw the offending paper, so many motions never reach a hearing. Discovery sanctions under section 2023.030 are more commonly granted and escalate from monetary through issue, evidence, and terminating sanctions.
How should strategy change when the other side will not negotiate? Document everything in writing, use a statutory offer to compromise to attach a cost consequence to their refusal, and file motions that narrow the case rather than motions that punish. Consider whether the obstacle is the person handling the file, in which case mediation or a settlement conference can move the decision to someone with authority.
Does bad-faith conduct affect fee recovery? Not directly. California follows the American Rule, and bad conduct does not create a right to fees where no contract or statute provides one. It can support a sanctions award that includes fees the conduct caused, and where fees are already recoverable it can affect what amount is reasonable.
When does a party’s conduct justify escalating rather than settling? When it is documented, continues after you have raised it in writing, and is causing measurable cost or prejudice, such as a pattern of discovery abuse that conceals evidence. Escalating over tone, a high demand, or a legal disagreement generally costs more than it returns and can damage your standing with the court.
